An
ALR suspension is initiated against an arrested driver when he either refuses to submit
to breath or blood testing, or alternatively, fails a breath or blood
test. The legal authority to impose an ALR suspension against a driver
lies in the Texas implied consent statute.

In Texas, each person who operates a motor vehicle on Texas roadways has
given his implied consent to provide a specimen of breath or blood if
arrested for DWI and provided with the applicable consequences of refusing
to submit to testing (Texas Transportation Code ß724).

Many police officers, after arresting a citizen, will tell the arrested
driver that if he does not agree to take a breath or blood test that his
license will be automatically and immediately suspended.

WRONG!

When making an arrest for DWI, peace officers are required to take possession
of any Texas license issued by this state and held by the person arrested
and issue the person a temporary driving permit that expires on the 41st
day after the date of issuance. Further, a request for a hearing to challenge
the proposed suspension will delay any ALR sanctions until a hearing takes place.

Fighting the Suspension – Requesting Your Hearing

An ALR suspension is automatic if you don’t request a hearing to
contest the suspension within 15 days from the date of arrest. The request
instructions are on the bottom of the notice of suspension. If you delay
and request the hearing on the 16th day, you are out of luck. Too late!

If a hearing is not timely requested, the suspension will automatically
begin on the forty-first (41st) day after notice was received. If a hearing
is requested, no action will be taken regarding suspension until after
the hearing has taken place, even if the hearing takes place more than
forty days after the arrest.

Further, in the event of an ALR appeal, the suspension can be delayed for
an additional 90 days.

The Administrative License Revocation Hearing

The burden of proof at an ALR hearing is on the
Department of Public Safety. Once a driver or his attorney has made a timely request for an ALR hearing,
no suspension may be imposed against the driver until the Department of
Public Safety proves the following elements by a preponderance of the
evidence at the hearing:

That there was reasonable suspicion to stop or probable cause to arrest
the driver,

That probable cause existed that the driver was driving or in actual physical
control of a motor vehicle in a public place while intoxicated,

That the driver was placed under arrest and was offered an opportunity
to give a specimen of breath or blood after being notified both orally
and in writing of the consequences of either refusing or failing a breath
or blood test, AND

That the driver refused to give a specimen on request of the officer,

OR, that the driver failed a breath or blood test by registering an alcohol
concentration of .08 or greater per 100ml of blood or 210 liters of breath.

Suspension Provisions for Adult Drivers

Without any prior alcohol or drug related contacts against the accused
driver during the previous 10-year period, the periods of suspension are
as follows:

Age of Driver

Refusal Penalty Trans. Code ß724.035

Failure Penalty Trans. Code ß524.022

21 or Older

180 days

90 days

Prior alcohol or drug Contact w/in 10 years

2 years

1 year

NOTE: If the person who refuses is a resident without a license, an order
will be issued denying the issuance of a license to the person for 180 days.

NOTE: the term “prior alcohol or drug contact” as used to lengthen
the period of suspensions stated above has been defined as a driver’s
license suspension, disqualification, or prohibition order under the laws of this state or
any other state resulting from a conviction for driving while intoxicated,
a refusal to provide a requested specimen, or providing a specimen showing
an alcohol concentration of a level specified in ß49.01 Texas Penal
Code (an alcohol concentration of 0.08 or greater).

Reinstatement of Drivers License After Suspension

If no suspension is imposed at the hearing, DPS is obligated to return
the Texas license to the person arrested. If a suspension is ordered either
automatically or after hearing, a driver must submit a reinstatement fee
of $125.00 to TDPS before the license will be reinstated. I advise my
clients to send their fee to TDPS as soon as they learn that a suspension
has been ordered. Again, because of the huge bureaucracy that has been
created under the new law, waiting until the 60th or 90th day to submit
your reinstatement fee will prolong reinstatement of your license until
the fee has been both received and entered on the TDPS computer system.

There is a special TDPS form that must be submitted to reinstate your driving
privileges. This form together with the reinstatement fee must be paid
by money order, cashier’s check or personal check and sent by certified
mail, return receipt requested for proper documentation of payment and
receipt to:

Additional Information

In addition to protecting your driving privileges, there is an equally
important reason to request an ALR hearing, and that is to better defend
you against the DWI charge.

Unfortunately, most drivers, and many lawyers who are unfamiliar with DWI
defense, do not realize the “discovery” importance of an ALR
proceeding. In fact, the importance of having a hearing to challenge your
ALR case is twofold.

First, with the assistance of a knowledgeable and skilled Houston DWI defense
attorney, many drivers are able to avoid a suspension of their driving
privileges. Second, by challenging your license suspension, you are providing
your attorney with an opportunity to use the ALR hearing to learn more
about how to best defend your DWI charge.

In this regard, the “discovery” information obtained through
the ALR process can be invaluable to your defense, and is often the deciding
factor in determining whether the related DWI charges can be successfully
defended against.

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